9911796707
TMI Blog2012 (5) TMI 451X X X X Extracts X X X X X X X X Extracts X X X X ..... Central Excise, Bhopal, which was upheld vide order-in-appeal No. 293/BPL/2009 dated 30-7-2009 passed by C.C.E. (Appeals), Bhopal and also for stay on recovery thereof till the disposal of the appeal. 2. The appellant are manufacturers of the machinery for manufacture of Empty Hard Gelatine Capsules. They avail Cenvat credit of duty paid on inputs and capital goods as per the provisions of Cenvat Credit Rules, 2002/2004. The allegation against them is that during the financial years 2003-2004, 2004- 2005 they took capital goods Cenvat credit amounting to Rs. 24,35,765/- on the basis of certain invoices which was in contravention of the provisions of the Cenvat Credit Rules, inasmuch as - (a) while as per the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een claimed only on the value of capital goods excluding Central Excise Duty, this plea was not accepted by the Adjudicating Authority. On appeal to Commissioner (Appeals), the Commissioner (Appeals) vide order-in-appeal dated 30th July, 2009 upheld the Additional Commissioner's order and dismissed the appeal. Against this order of the Commissioner (Appeals), the present appeal and stay application have been filed. 3. Heard both the sides. 3.1 Shri Rajesh Kumar, Advocate, the learned Counsel for the appellant, pleaded that while the appellant accept that due to mistake, at the time of receipt of the capital goods full credit of the Central Excise Duty had been taken, while in terms of the provisions of Cenvat Credit Rules, 2002/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es not include the Central Excise Duty, that in view of this, the impugned order is not correct, that the appellant have a strong prima facie case and hence the requirement of pre-deposit of Cenvat credit demand, interest and penalty may be waived for hearing of their appeal and recovery thereof may be stayed till the disposal of the appeal. 2.2 Shri R.K. Verma, the learned Departmental Representative, opposed the appellant's plea for waiver from the requirement of pre-deposit by reiterating the findings of the Commissioner (Appeals). The learned Departmental Representative emphasised that Shri G.D. Karode, Sr. Executive (Store & Excise) of the appellant-company in his statement dated 22-8-08 had deposed that after examination of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me eligible for the balance amount of credit in next financial year and as such they would be liable to pay only the interest on the wrongly availed Cenvat credit for the period, the same had been wrongly availed. As regards the second objection of the department that the credit has been taken in contravention of the provisions of Rule 4(4) of the Cenvat Credit Rules inasmuch as the appellant during the respective financial years had also availed depreciation for the purpose of income-tax on full value of the capital goods including the duty element, we find that the appellant have produced Chartered Accountant's certificate explaining in detail that the value of the capital goods in respect of which depreciation had been claimed did not in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e second objection of the department that the capital goods Cenvat credit of Rs. 24,35,765/- has been availed in contravention of the provisions of Rule 4(4) of the Cenvat Credit Rules, does not appear to be correct. In view of the above discussion, it is clear that the only objection about the Cenvat credit, in question, which we find is correct and which has not been disputed by the appellant, is that at the time of receipt of the capital goods while the credit should have been confined only to 50% of the duty amount and balance amount of the credit should have been taken in the next financial year, the appellant have taken full credit at the time of receipt of the capital goods. But it is also correct that in the next financial year, the ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
